United States v. Piette

45 F.4th 1142

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 18, 2022
• Docket: 20-7008
• Status: Published

Opinion

Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS August 18, 2022

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-7008

HENRI MICHELLE PIETTE, a/k/a Henri Michel Piette, a/k/a Henri Billy, a/k/a Dan Reed, a/k/a Billy Ira Sloop, Jr., a/k/a Michael Wayne Mansfield, a/k/a Christopher Allen McAnear,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:17-CR-00079-RAW-1) _________________________________

Alan S. Mouritsen, Parsons Behle & Latimer, Salt Lake City, Utah, for Defendant- Appellant.

Linda A. Epperley, Assistant United States Attorney (Christopher J. Wilson, Acting United States Attorney, and Sarah McAmis, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff- Appellee. _________________________________

Before McHUGH, EBEL, and EID, Circuit Judges. _________________________________

EID, Circuit Judge. _________________________________ Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 2

A jury in the Eastern District of Oklahoma convicted Henri Piette of

kidnapping and traveling with intent to engage in sexual relations with a juvenile.

The district court sentenced Piette to life imprisonment on the former conviction and

360 months’ imprisonment on the latter. He seeks to have his convictions overturned

or his sentence reversed. We hold that the district court did not err by admitting

evidence of Piette’s uncharged acts of molestation, and that statutes extending the

unexpired charging period for the traveling-with-intent charge did not have an

impermissible retroactive effect. However, we conclude that the district court plainly

erred by misallocating the burden of proof once Piette disputed the timing of the

kidnapping by arguing that the victim, Rosalynn McGinnis, consented. If she had

consented, the kidnapping would have been over, and the statute of limitations would

have begun to run, potentially rendering the indictment untimely. We reverse

Piette’s kidnapping conviction because there is a difference between what happened

here—Piette failing to prove by a preponderance of the evidence that McGinnis ever

consented—and what the Constitution requires: the government proving beyond a

reasonable doubt that she never consented at a time that would cause a statute of

limitations problem. Finally, we reject Piette’s argument that he was denied his Sixth

Amendment right to self-representation at sentencing. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further

proceedings.

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I.

a.

The following account is based on trial testimony. Rosalynn McGinnis was

born in 1984. In the early 1990s, McGinnis lived in Springfield, Missouri, with her

parents, Gayla and Michael, and several siblings. One day, while playing at the park,

the McGinnis children met Henri Piette’s children. The kids became close, bonding

over sleepovers, movies, meals, and time spent on Piette’s trampoline.

Piette first molested McGinnis at one of these sleepovers. She was nine. At

first, she thought it was a “bad dream,” but soon she realized that it was far too

detailed to have been a dream. R. Vol. II at 188. Gayla had not believed McGinnis

when she was previously molested by her half-brother, so McGinnis did not tell

anyone about what Piette did.

McGinnis was not Piette’s only victim in Springfield. One of Piette’s sons,

Tobias Piette, testified that he saw Piette molest several other children while they

lived there. One day, he walked in on Piette giving an eight-year-old girl a shower

and touching her vagina. Another time, he saw Piette giving a different young girl a

driving lesson; he groped her butt while she sat on his lap.

As the McGinnis and Piette children got to know each other better, so did

Gayla McGinnis and Henri Piette. They discussed Gayla’s interest in religion and

the Church of Jesus Christ of Latter-day Saints. Piette gradually drove Gayla away

from her husband Michael, who did not share her interest in these topics and was

often away from home. Soon, Michael left Gayla and the children entirely. “Almost

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immediately,” McGinnis’s brother testified, it was as if Piette “had stepped into

[Michael’s] shoes.” Id. at 489.

But Piette ran a very different kind of home. He read Bible passages to the

children constantly. He encouraged Gayla to physically discipline the children. He

started separating the children and imposed something “almost like a hierarchy

system.” Id. He beat Gayla “countless” times. Id. at 634. He also beat the children.

After one of Piette’s beatings drew the attention of authorities, Piette convinced

Gayla that she would be blamed for it, and they took the family on the road. They

moved on an almost daily basis, passing through Arizona, Oregon, Utah, California,

Montana, Missouri, Texas, Oklahoma, and Guatemala. Piette forced the others to

beg for money. They lived in a tent. Piette gave McGinnis beer and molested her

daily.

Piette, Gayla, and the children settled in Wagoner, Oklahoma. There, Piette

escalated his physical, sexual, and psychological abuse. He hit the children with two-

by-fours when they said “hanged” instead of “hung.” Id. at 212. He punched Gayla

in the face. He raped McGinnis. She was eleven. Finally, Gayla escaped to her

mother’s home in Independence, Missouri, and took her children with her. A few

weeks later, Piette went to Independence and took them back.

When they returned to Wagoner, Piette addressed his “sin” with McGinnis by

marrying her in a secret ceremony officiated by Piette’s son Tobias. Id. at 219.

Piette also married Gayla around this time. The sexual abuse of McGinnis continued

unabated. Piette performed oral sex on McGinnis and penetrated her vagina daily

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with his penis and fingers. She was twelve. After a run-in with Child Protective

Services, McGinnis and her family landed in a domestic violence shelter in Poteau,

Oklahoma, away from Piette. McGinnis briefly attended middle school in Poteau.

On January 31, 1997, McGinnis went to school in Poteau and did not come

home. Piette visited her on the playground that day. He told McGinnis that he loved

her and that he would reunite their family. He told her to look for “signs.” Id. at

234. Later that day, McGinnis noticed a sombrero and a poncho inside a school

building; she recognized them from a trip to Mexico with Piette. She ran outside the

school and saw Tobias Piette in a truck; he took her to Tulsa, where they met up with

Piette and Piette’s other children. When McGinnis asked about the rest of her family,

Piette told her there was not enough time to get her brothers and that Gayla “wasn’t

coming back.” Id. at 240. He introduced McGinnis to his children as “their new

mother.” Id. McGinnis was horrified.

McGinnis did not attend school after the sixth grade. Piette moved McGinnis

and his children around the country several times, taking advantage of benefits

provided by the Church of Jesus Christ of Latter-day Saints, and avoiding detection

by using false names and changing McGinnis’s appearance.1 Everyone was drilled

on what to say if people started asking questions. Piette forced McGinnis to write

letters to relatives, the media, and law enforcement, saying that she ran away from

1 Eventually, McGinnis legally changed her name to Stephanie Reed, one of the aliases Piette forced her to adopt. 5 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 6

her “crazy” mother and “no good” family. Id. at 263. If she misspelled a word she

was hit. In reality, Gayla diligently searched for McGinnis.

Piette continued subjecting McGinnis to constant physical and sexual violence.

He raped her “[t]hree times a day, maybe more.” Id. at 249. Shortly before

McGinnis turned thirteen, while living in Oklahoma City, she became pregnant for

the first time. She had a miscarriage and Piette told her to flush it down the toilet.

Piette started giving McGinnis crack cocaine and beat her more frequently. Then,

while living in Idaho, McGinnis became pregnant again. This time, she was fourteen.

Piette moved the family to Mexico to avoid questions about her pregnancy, but when

Piette brought McGinnis to the hospital the doctors said it was too soon to deliver the

baby. Piette disagreed. He used a pocketknife to deliver the baby on the floor of a

van. At the time, they were “living in an abandoned trailer that was on a piece of

land that had no electricity, no water, had holes in the floors and was infested with

bed bugs.” Id. at 276.

Over the next sixteen years, Piette moved the family around Mexico and

Guatemala, rarely spending more than a few months in any one location, though they

would take occasional trips back to the United States. McGinnis delivered eight

more of Piette’s children. These children did not go to school, socialize, or even

learn how to read. They were isolated from others. Piette tried to prevent them from

learning where they were living. The children were also neglected. One of the boys

had a single pair of shorts that he kept on his body with a rope. One of the girls

almost drowned in a bucket of water. Piette hung her upside down to shake the water

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out and she recovered. The family’s lifestyle consisted of “begging on the streets and

living from place to place.” Id. at 340. Sometimes, McGinnis sold ice cream and

other foods. Other times, Piette would make racist comments to provoke the locals

into fighting McGinnis for money. Whatever the source, all money went to Piette.

He spent it on drugs and alcohol, which he also abused.

Years passed, and Piette’s brutality continued. McGinnis testified that there

was never a time that Piette was not beating her. He would sometimes tie McGinnis

to a bed or chain her to a pole for days. She testified that she has scars all over her

face, has had both her arms broken, has been stabbed and shot, suffers chronic pain,

and needed throat surgery to be able to speak. Piette would also terrorize their

children, hitting them with two-by-fours, bats, rocks, pans, pickaxes, glass bottles,

fruit, and “[a]nything that was in reach.” Id. at 119. He would beat the children to

the point of unconsciousness and then tell them that he loved them. “[I]t just

surprised me how close I can get to dying without dying,” McGinnis’s firstborn

testified. Id. at 127.

Piette also started molesting the children McGinnis delivered. Ma.P., Piette’s

first daughter with McGinnis, testified at trial that when she was around five years

old, Piette asked her to stand against the wall, pull down her underwear, and show

him her vagina. Although McGinnis did not know exactly what was happening with

her daughter, she was suspicious. Piette complimented and touched Ma.P.’s vagina

more frequently as she got older. He made Ma.P. dance naked and gave her alcohol

and drugs while he molested her. He put his mouth on her chest and her vagina. He

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made her touch and put her mouth on his penis, and he ejaculated in her mouth.

When she was seven or eight years old, Piette started putting objects in Ma.P.’s

vagina, such as frozen hot dogs and drumsticks. He would punish her by cutting up

chilis and rubbing chili juice on his fingers, then placing them in her vagina. Piette

also started putting his penis in her vagina. When she resisted, Piette told her he

would either molest her or one of her sisters. One time, Ma.P. saw Piette molesting

her younger sister, A.P., who was crying; Ma.P. was forced to put her mouth on

Piette’s penis so he would leave A.P. alone.

A.P. also testified about Piette’s sexual abuse. According to A.P., Piette

started touching her vagina when she was around seven years old and continued to

molest her every few days. She often woke up to Piette touching her vagina. Piette

forced A.P. to masturbate his penis and ejaculated in her mouth. One time, A.P. and

her younger brother saw Piette performing oral sex on Ma.P. A.P. and Ma.P. never

talked about their shared experience of sexual trauma and abuse.

Sometimes, McGinnis would travel back into the United States by herself to

beg for money. Other times, Piette was incarcerated, and McGinnis helped him get

out of jail. McGinnis also purchased several guns and carried a gun at times,

although she testified it belonged to Piette. But Piette told McGinnis that he would

kill the children, and then her, if she ever left him. He also told her that, if she got

the police involved, nobody would ever believe her. That he would kill her. That her

family did not want her back. That “he was the only one that would ever care for”

her. Id. at 298. And that she “was to do exactly what he told [her] to do or else.” Id.

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On direct examination, McGinnis defined “or else” as Piette killing her and her

children. Id. McGinnis further testified that she did not take advantage of any

potential opportunity to harm Piette because she “knew that if [she] didn’t kill him

with the first shot or knife stab, if there was any way that he would survive, he would

kill [her] and every one of [her] children.” Id. at 435–36. Even had she managed to

kill him, she testified that she believed she would be imprisoned for life and her

children all sold into slavery. On the other hand, Piette introduced testimony from

his father that he and McGinnis appeared to have a “very happy family.” Id. at 985.

Notwithstanding the fear that Piette’s threats instilled in her, McGinnis made

several attempts to escape. Once, alone with her children in an Arizona motel room,

she called a women’s crisis shelter, but Piette returned before the shelter could assist

her. Another time, McGinnis took her children to Piette’s son Mikey’s house. Piette

quickly arrived, dragged McGinnis out by her hair, and beat her. One of Piette’s

children with McGinnis managed to escape and, although a knife fight ensued, Piette

did not kill him.

In 2016, McGinnis saved up $150 over the course of several months—hiding it

by a hill to avoid Piette’s detection—and waited until Piette, who had been in and out

of rehab, was passed out drunk. Then she took her children, found a taxi, and hid in a

nearby town. McGinnis and eight of her children—one of her sons had already

escaped—made their way to an American Consulate. They returned to the United

States and settled in Kansas City, Missouri.

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b.

In 2017, Piette was indicted in the Eastern District of Oklahoma and charged

with kidnapping under 18 U.S.C. §§ 1201(a)(1) and 1201(g), and traveling with

intent to engage in sexual relations with a juvenile under 18 U.S.C. § 2423(b). A jury

found Piette guilty of both counts. Four legal issues relevant to this appeal emerged

in the proceedings before the district court.

First, the government sought to admit evidence that Piette molested his

daughters with McGinnis as well as an unrelated girl in Springfield some years

before meeting McGinnis (“the molestation evidence”). The government argued that

the molestation evidence could be admitted as res gestae—meaning inextricably

intertwined with the charged conduct—and, alternatively, under either Federal Rule

of Evidence 404(b), covering other acts evidence, or Rule 414, covering child

molestation evidence. Piette opposed. At a pretrial conference, the district court

ruled that the molestation evidence came in (1) as res gestae “because it goes to the

issue of consent, and it is inextricably intertwined with the charged crimes”;

(2) under Rule 404(b) because it went “to the issues of both motive and plan”; and

(3) under Rule 414 as permissible propensity evidence. Id. at 41–42. The district

court then turned to whether the evidence was more prejudicial than probative, saying

only: “I still have to do a balancing test under [Federal Rule of Evidence] 403. And I

believe that the probative value of the evidence is certainly not substantially

outweighed by the prejudicial effect.” Id. at 42. The district court memorialized

these evidentiary rulings in a brief order. In that order, the court reiterated that the

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molestation evidence could come in under Rule 404(b) “at least [to] show motive and

plan.” R. Vol. I at 321 (parentheses omitted).2 The order did not elaborate upon the

court’s Rule 403 analysis. Halfway through trial, facing repeated objections, the

district court restated its conclusory Rule 403 finding.

Second, Piette argued in pretrial briefing that the traveling-with-intent charge

was untimely because any enactments purporting to extend the statute of limitations

had an impermissible retroactive effect. The district court ruled that because the

original statute of limitations had not already expired when Congress acted, the

legislature validly extended a live charging period, rendering Piette’s 2017

indictment timely. The district court thus endorsed “the theory that such amendments

may be applied retroactively to extend a filing period for charges that were still

viable at the time of the amendment.” Id. at 151; cf. Hughes Aircraft Co. v. United

States ex rel. Schumer, 520 U.S. 939, 950 (1997) (“[E]xtending a statute of

limitations after the pre-existing period of limitations has expired impermissibly

revives a moribund cause of action.”). Piette renewed his retroactivity argument in

an oral motion for acquittal at the conclusion of the government’s case-in-chief,

which the district court denied.

2 At trial, the court gave a limiting instruction several times when it felt that Rule 404(b) evidence was being presented. Usually, the court told the jurors that they should consider the evidence not just for motive and plan, but also for intent and knowledge. Subsequently, preparation replaced knowledge. Later, all five purposes were in play. By the end of the trial, the court was communicating the limiting instruction only by alluding to its existence, leaving it unclear which Rule 404(b) purposes were being invoked. 11 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 12

Third, the district court noted before trial that the government would likely try

to prove that McGinnis’s “kidnapping continued uninterrupted” from 1997 through

her 2016 escape. R. Vol. I at 147. That was because any “break” within that twenty-

year span would start the kidnapping count’s five-year statute of limitations. Id. If

the statute of limitations expired before Piette’s 2017 indictment, the charge would

not be timely. As a result, the court anticipated sending a special interrogatory to the

jury. At trial, the court did just that, denying a motion for acquittal on this basis and

providing the jury the following instructions.

DURATION OF KIDNAPPING The government contends that the kidnapping alleged in Count 1 extended from January 1997 until July 28, 2016. Under the law, if the victim of a kidnapping is no longer held against her will, the kidnapping is over. As one of the defenses, [Piette] contends Rosalyn McGinnis was (if at all), at a date earlier than July 28, 2016, no longer held against her will. [Piette] must prove this contention by a preponderance of the evidence, which is defined as “more likely than not.” On the verdict form, only if you have found the defendant guilty as to Count 1, you will be asked to determine if Rosalyn McGinnis was no longer held against her will at an earlier date, and what that date was. This will aid the court in making a separate legal determination in regard to this case. In determining if Rosalyn McGuinness [sic] was continually held against her will (physically and/or psychologically), you should consider all the testimony you have heard in the case.

Id. at 372. The verdict form reflected these instructions. It told the jury that, should

it find Piette guilty of kidnapping, it must answer an additional yes/no question: “Do

you find, by a preponderance of the evidence, that Rosalyn McGuinness [sic] was no

longer held against her will on a date earlier than July 28, 2016?” Id. at 388. If the

answer was yes, jurors were asked to specify the date and/or the year. The jury

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ultimately found Piette guilty of kidnapping and did not find, pursuant to the district

court’s instructions, that Piette demonstrated by a preponderance of the evidence that

McGinnis was no longer held against her will prior to July 28, 2016. Piette did not

argue below that these jury instructions created a statute of limitations problem.

Finally, Piette claims that he sought to represent himself in a letter to the

district court in November 2019, and then again at the start of sentencing in February

2020. In his letter, Piette asked the court to “terminate the services” of attorney

Warren Gotcher and investigator Eric Cullen because of “Absolute ‘In[e]ffective

Assist[a]nce of Counsel.’” Id. at 399 (emphasis omitted). On February 20, 2020,

before proceeding to sentencing, the district court addressed Piette’s pending motion

to withdraw his trial counsel. Gotcher stated that he had no objection to Piette’s

motion. Gotcher next double-checked with Piette that Piette still wanted Gotcher to

withdraw. Piette said “Yes.” R. Vol. II at 1107. Gotcher indicated that he had an

“obligation to stay through sentencing” and assist Piette in filing a notice of appeal;

he asked the district court to delay granting the motion until those tasks were

complete. Id. Agreeing, the district court granted the motion “to be in effect

subsequent to this sentencing hearing.” Id. at 1108. This exchange followed:

The Court: I think it is important that trial counsel, who has been with the case since—well, not day one because this is Mr. Piette’s second appointed attorney, . . . be here through the sentencing hearing itself. So the Court directs that another attorney will be appointed by the Federal Public Defender’s office to see Mr. Piette’s case through appeal and that—and that is, unless, Mr. Piette wants to hire an attorney on his own.

The Defendant: Are you saying—

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The Court: No, no, you tell Mr. Gotcher.

(OFF THE RECORD DISCUSSION BETWEEN MR. GOTCHER AND THE DEFENDANT)

Mr. Gotcher: We are ready to go on, Your Honor.

The Court: All right. Is that acceptable, Mr. Piette?

The Defendant: Yes, sir, yes.

Id. at 1108–09.

The district court entered hundreds of pages of Piette’s handwritten letters as

an exhibit, noting that they contextualized Piette’s request to withdraw Gotcher. As

the court put it: “At some points in time Mr. Piette expressed vast disagreement with

counsel and at other times Mr. Piette thought Mr. Gotcher was the best thing since

sliced bread.” Id. at 1109. The district court decided to “err on the side of giving

Mr. Piette new counsel for appeal purposes.” Id. Sentencing ensued.

The district court ruled on Gotcher’s objections to the Presentence Report and

Gotcher argued in support of his written motion for a downward variance, which the

court denied. After hearing from the government, the court invited Piette to speak.

He did so for “nearly thirty transcript pages.” Aple. Br. at 46; see also R. Vol. II at

1119–46. He maintained his innocence, touted a work ethic so strong that employers

have called him a “human backhoe,” explained that badgers are “meaner than hell,”

and bragged about how popular his family’s dairy products were in Mexico. R. Vol.

II at 1141, 1144. The court sentenced Piette to life imprisonment on the kidnapping

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conviction and 360 months’ imprisonment on the traveling-with-intent conviction.

Piette appealed.

II.

We begin with whether the molestation evidence was properly admitted under

any of the three theories accepted by the district court: res gestae, Rule 404(b), and

Rule 414. The term “molestation evidence,” as used in Piette’s appeal, encompasses

testimony that Piette sexually abused two of the daughters he had with McGinnis and

an unrelated girl in Springfield before he met McGinnis. See Aplt. Br. at 14. Piette’s

daughters, known as Ma.P. and A.P. at trial, testified at length about their own abuse,

while Piette’s son Tobias testified briefly about the Springfield girl. On appeal,

Piette argues that both his convictions should be reversed because the district court

improperly admitted this highly prejudicial evidence. We disagree. The intrinsic

molestation evidence about Piette’s daughters was admissible as res gestae, while the

extrinsic molestation evidence concerning the Springfield girl, even if admitted in

error, likely had no effect on the verdict. We do not reach Rule 404(b) or Rule 414.

Although the district court’s conclusory, one-sentence Rule 403 prejudice inquiry

was deficient, our review of the case suggests that it was not an abuse of discretion to

admit the molestation evidence under Rule 403. See United States v. Lazcano-

Villalobos, 175 F.3d 838, 846 (10th Cir. 1999) (“We have consistently upheld

implicit Rule 403 determinations when the determinations are supported by the

record.”). Piette’s convictions withstand his evidentiary arguments.

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Piette appeals the molestation evidence’s admission on all three grounds relied

upon by the district court, contending that his “trial was infected by repulsive other-

act molestation evidence that created an unacceptable risk that the jury would convict

based on emotion instead of dispassionate decision-making.” Aplt. Br. at 25. Piette

stresses that he mounted a “targeted” and “technical but effective” defense to each

charge at trial, only disputing the consent element of the kidnapping charge and the

intent element of the traveling-with-intent charge. Reply Br. at 14. Because this

significantly reduced the number of disputed facts at trial, Piette suggests the

molestation evidence “added no probative value to the government’s case,” Aplt. Br.

at 4, and merely inflamed the jury.

On res gestae, Piette argues that the molestation evidence was irrelevant to

proving his intent or McGinnis’s lack of consent, thus falling short of the

“inextricably intertwined” standard. Id. at 31. The government responds that the

evidence was “part and parcel of his scheme to maintain control of his family and

enforce his rules of begging, service and secrecy.” Aple. Br. at 22. On Rule 404(b),

Piette argues that the molestation evidence fails to show “motive” because the notion

that Piette’s motive in kidnapping McGinnis was to molest their future children is

simply the “forbidden character-based propensity inference repackaged.” Aplt. Br. at

33. Likewise, Piette argues that the molestation evidence fails to show any “plan”

because it is unrelated to the charged offenses, leaving “no non-propensity purpose.”

Id. at 35. The government counters that Piette was “motivated to produce children

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who he could control to meet his sexual desires,” and that kidnapping McGinnis “was

preparation for his plan to create his own home where he could meet his perverse

sexual needs” without drawing attention. Aple. Br. at 23–24. Finally, turning to

Rule 414, Piette argues that the district court failed to conduct a non-conclusory

prejudicial balancing analysis and that the molestation evidence was barely probative

but highly prejudicial. The government replies that its admission was a reasonable

application of Rule 414.

We review a district court’s evidentiary rulings for abuse of discretion. United

States v. Sturm, 673 F.3d 1274, 1285 (10th Cir. 2012). We may uphold them “on any

ground supported by the record.” Id. at 1286. Reversal requires “a distinct showing

that [the ruling] was based on a clearly erroneous finding of fact, or an erroneous

conclusion of law or manifests a clear error in judgment.” United States v. Lozado,

776 F.3d 1119, 1124 (10th Cir. 2015) (quoting United States v. Smalls, 605 F.3d 765,

773 (10th Cir. 2010)). “When a district court has improperly admitted or excluded

evidence, we reverse ‘only if the error affects a substantial right of the party.’”

Burke v. Regalado, 935 F.3d 960, 1011 (10th Cir. 2019) (quoting Fed. R. Evid.

103(a)). The question is whether the error was harmless. See id. Harmless error

analysis looks at “the record as a whole.” Id. (quoting Hill v. J.B. Hunt Transp., Inc.,

815 F.3d 651, 659 (10th Cir. 2016)). It asks whether the “verdict more probably than

not was unaffected by the error.” Id. (quoting Abraham v. BP Am. Prod. Co., 685

F.3d 1196, 1202 (10th Cir. 2012)).

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Evidence of other bad acts may be extrinsic or intrinsic depending on its

relationship to the charged offense. Intrinsic other acts evidence encompasses

conduct “inextricably intertwined with the charged crime such that a witness’s

testimony would have been confusing and incomplete without mention of the prior

act.” United States v. Ford, 613 F.3d 1263, 1267 (10th Cir. 2010) (quoting United

States v. Johnson, 42 F.3d 1312, 1316 (10th Cir. 1994)). This is known as res gestae,

which the district court invoked to admit much of the molestation evidence. We have

also described this kind of evidence as “part and parcel of the proof of the offense . . .

charged in the indictment.” United States v. Kimball, 73 F.3d 269, 272 (10th Cir.

1995) (quoting United States v. Gano, 560 F.2d 990, 994 (10th Cir. 1977)). Res

gestae evidence is not subject to Rule 404(b), but it remains subject to Rule 403

balancing and “will be inadmissible . . . if it has no proper probative value.” United

States v. Irving, 665 F.3d 1184, 1215 (10th Cir. 2011) (Hartz, J., concurring). In this

case, a res gestae theory can apply, at most, to the subset of the molestation evidence

concerning Piette’s daughters. The Springfield girl incident took place before

McGinnis entered the picture and cannot come in as “part and parcel” of her

kidnapping. See Kimball, 73 F.3d at 272.

In United States v. Ford, the incarcerated defendant and another inmate

escaped from a Kansas prison with the aid of the defendant’s romantic partner. 613

F.3d at 1266. The partner, a former corrections officer, stole several guns, cut

through several prison fences, and rented a getaway car. Id. The trio drove the car to

18 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 19

New Mexico, where they sought a new vehicle to avoid detection. Id. They were

arrested while scoping out a local apartment complex for a car to steal, and the

defendant was charged as a felon in possession, a fugitive in possession, and for

possession of stolen firearms. Id. at 1265–66. On appeal, the defendant challenged

the trial judge’s admission of evidence concerning his prison escape as res gestae.

Id. at 1267. We rejected the defendant’s arguments, concluding that the “Kansas

escape could not be separated from the charged crimes.” Id. at 1268. We reasoned

that his “flight began with the escape, which explained his need for weapons and the

circumstances of his arrest just two and a half days later.” Id. The evidence was

“undoubtedly res gestae—intrinsic evidence inextricably connected to the charged

crimes.” Id.

Here, the district court properly invoked res gestae to permit the government to

paint a complete picture of Piette’s other simultaneous domestic molestation conduct.

Like in Ford, it is difficult to separate Piette’s treatment of his daughters from his

treatment of McGinnis, especially when McGinnis’s consent was disputed at trial.

The government used the molestation evidence to reveal the nature of Piette’s

household and convince the jury that McGinnis never consented to Piette’s treatment.

See Johnson, 42 F.3d at 1316 (“An uncharged act may not be extrinsic if . . . it was

part of the scheme for which a defendant is being prosecuted.”). The evidence was

properly admitted as res gestae, and it is relevant to the finding of fact required to

rebut Piette’s statute of limitations argument on the kidnapping charge.

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In his briefing, Piette deletes the references to the abuse of his daughters from

the government’s account of his behavior, suggesting that such a redlined version

“would not have left analytical or temporal gaps in the government’s case or left the

jury confused,” so the res gestae finding was improper. Reply Br. at 5.

Notwithstanding the logical consistency of Piette’s redacted summary, res gestae was

still a valid ground for admission because the resulting testimony would have been

“incomplete” without the evidence of Piette’s abuse of his daughters. See Ford, 613

F.3d at 1267. It was crucial for the jury to hear from Piette’s daughters about the

extent of his molestation so it could fully understand their living situation, his

conduct, his intentions, and McGinnis’s perspective, which they were required to

evaluate.

Finding that the intrinsic molestation evidence could come in as res gestae still

leaves Rule 403 balancing. Under Rule 403, a court “may exclude relevant evidence

if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

Piette focuses his challenge on the “unfair prejudice” aspect of Rule 403. Typically,

we review a district court’s Rule 403 analysis to assess whether it constituted an

abuse of discretion warranting reversal. See, e.g., United States v. Merritt, 961 F.3d

1105, 1115–16 (10th Cir. 2020). Here, however, the district court’s Rule 403

analysis was wholly conclusory. Ruling on the molestation evidence orally, the

district court stated just: “I believe that the probative value of the evidence is

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certainly not substantially outweighed by the prejudicial effect.” R. Vol. II at 42.

The district court’s written order had nothing more to say on the matter. That leaves

little to review. However, we may supplement the district court’s Rule 403

determination on appeal to assess whether its conclusion was an abuse of discretion.

See United States v. Magnan, 756 F. App’x 807, 821 (10th Cir. 2018) (unpublished);

see also Lazcano-Villalobos, 175 F.3d at 846–47.3 Considering Piette’s arguments

about minimal probative value due to limited areas of dispute at trial, and maximal

prejudice because of the depravity of the molestation evidence, we conclude that

Piette understates the evidence’s probative value and overstates its prejudicial effect.

First, jurors could reasonably find that the molestation evidence made a fact of

consequence—either McGinnis’s consent, for the kidnapping charge, or Piette’s

intent, for the traveling-with-intent charge—significantly more or less likely than it

was without that evidence. See Fed. R. Evid. 401 (relevant evidence has “any

tendency” to make a “fact . . . of consequence in determining the action” “more or

less probable”); see also United States v. Jordan, 485 F.3d 1214, 1218 (10th Cir.

2007) (the relevancy requirement sets a “very low” bar). For example, by raising

McGinnis’s consent as a defense, Piette was asking the jury to understand her

perspective. The molestation evidence helped the jury do so. Piette’s argument that

McGinnis was unaware of her daughters’ molestation is irrelevant to whether the

evidence, if believed, made the proposition that she consented less likely. It did, so it

3 Unpublished cases are not binding precedent, but we consider them for their persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 21 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 22

was relevant. The same is true with respect to Piette’s defense to the traveling-with-

intent charge. Jurors may have viewed Piette’s later abuse of McGinnis’s daughters

as making it more likely he had the requisite intent when he traveled with McGinnis.

Second, while graphic testimony that Piette molested the daughters he had

with McGinnis may have affected the jury, we do not think that any resulting

prejudice was particularly unfair or that it substantially outweighed the evidence’s

probative value with respect to Piette’s principal defenses—or, at least, not so much

as to render the district court’s decision an abuse of discretion. Piette’s argument

that jurors may be unfairly inflamed by child sexual predators is somewhat self-

defeating. Even before hearing from Ma.P. and A.P., the jurors were already dealing

with an individual charged with kidnapping his preteen stepdaughter-wife, raping her

three times a day for years, and forcing her to bear nine of his children. The district

court could have reasonably concluded that any prejudicial effect probably would

have already happened. Even defense counsel started his opening statement at trial

by saying: “Ladies and gentlemen of the jury, [the government’s] opening statement,

it sounds real bad, it sounds awful.” R. Vol. II at 98. In light of this, the district

court could have also recognized, as a countervailing consideration, that it was

important for the jury to hear the molestation evidence. As we have explained, the

evidence served a critical purpose: it helped the jury contextualize McGinnis’s

situation and assess whether Piette’s defenses were meritorious. Because the district

court could have reasonably concluded that the danger of unfair prejudice did not

outweigh the molestation evidence’s probative value, it was not an abuse of

22 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 23

discretion to admit the subset of the molestation evidence concerning Piette’s

daughters, notwithstanding Rule 403.

c.

The government recognized at trial that Tobias’s testimony about Piette

molesting the Springfield girl was inadmissible as res gestae because it preceded

Piette’s time with McGinnis. In other words, it was extrinsic bad acts evidence.

However, the government argued that Rules 404(b) and 414 were alternative bases

for admission. We hold that even if the district court erred by admitting this subset

of the molestation evidence under either rule, any error was harmless.

Evidence law generally abhors the propensity inference—the notion that a

person did something just because he has a corresponding character or has done

similar things before. See Fed. R. Evid. 404(b)(1) (“Evidence of any other crime,

wrong, or act is not admissible to prove a person’s character in order to show that on

a particular occasion the person acted in accordance with the character.”); see also

Michelson v. United States, 335 U.S. 469, 475–76 (1948). However, Rule 404(b)

carves a purpose-based exception that allows evidence of other bad acts to be

admitted for non-propensity purposes, “such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Fed.

R. Evid. 404(b)(2). “We ‘consider four factors in weighing the admissibility of

evidence under Rule 404(b): (1) whether the evidence is offered for a proper purpose,

(2) its relevancy, (3) that the probative value of the evidence is not substantially

outweighed by its prejudicial effect, and (4) [that] a limiting instruction is given if

23 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 24

the defendant so requests.’” United States v. Burgess, 576 F.3d 1078, 1098 (10th Cir.

2009) (quoting United States v. Mares, 441 F.3d 1152, 1157 (10th Cir. 2006)). This

inquiry incorporates the Rule 401 relevancy and Rule 403 balancing inquiries at steps

two and three, respectively. See United States v. Tan, 254 F.3d 1204, 1207 (10th Cir.

2001).

Another exception to the general inclination against propensity evidence is

Rule 414, which embraces the propensity inference in a limited class of cases. It

states that, “[i]n a criminal case in which a defendant is accused of child molestation,

the court may admit evidence that the defendant committed any other child

molestation . . . on any matter to which it is relevant.” Fed. R. Evid. 414(a). There

are three “threshold requirements” for admitting evidence pursuant to Rule 414:

“(1) the defendant is accused of a crime involving sexual assault or child molestation,

(2) the evidence proffered is evidence of the defendant’s commission of another

offense or offenses involving sexual assault or child molestation, and (3) the

evidence is relevant.” United States v. Benally, 500 F.3d 1085, 1090 (10th Cir.

2007). But that is not the end of the road. We subject Rule 414 evidence to a

particular breed of Rule 403 balancing and insist that “the district court has an

obligation ‘to fully evaluate the proffered . . . evidence and make a clear record of the

reasoning behind its findings.’” Id. at 1091 (omission in original) (quoting United

States v. Guardia, 135 F.3d 1326, 1331 (10th Cir. 1998)).4

4 This specialized Rule 403 inquiry has two stages. First, the district court must consider the four Enjady factors: “(1) how clearly the prior act has been proved; 24 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 25

Even if the district court erred by admitting the subset of the molestation

evidence concerning the Springfield girl under Rules 404(b) or 414, we think that any

such error was harmless. Reviewing the record in its entirety makes clear that

testimony about the Springfield incident occupied only a few moments in a weeklong

trial packed with graphic, disturbing evidence of Piette’s behavior, often in the form

of lengthy firsthand accounts from survivors like McGinnis, Ma.P., and A.P. Tobias

Piette’s testimony about encountering Piette and the Springfield girl in the shower

before meeting McGinnis pales in comparison to the breadth, depth, and detail of the

remaining sexual molestation evidence the jury heard in this case. It is also notable

that the jury received evidence of inappropriate conduct with minors unrelated to

McGinnis, her children, or the Springfield girl, which Piette does not challenge on

appeal, such as the driving lesson Tobias testified about. Based on our review of the

questions the jury was asked to decide, and the evidence the government presented to

help it decide them, we think it is more likely than not the case, see Burke, 935 F.3d

at 1011, that the subset of the molestation evidence involving the Springfield girl,

even if admitted in error, had no effect on the jury’s verdict on either count. Because

(2) how probative the evidence is of the material fact it is admitted to prove; (3) how seriously disputed the material fact is; and (4) whether the government can avail itself of any less prejudicial evidence.” United States v. Perrault, 995 F.3d 748, 765– 66 (10th Cir. 2021) (footnotes omitted); see also United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998). The district court must next weigh the Enjady factors against three additional factors: “(1) how likely [it is that] such evidence will contribute to an improperly-based jury verdict; (2) the extent to which such evidence will distract the jury from the central issues of the trial; and (3) how time consuming it will be to prove the prior conduct.” Perrault, 995 F.3d at 766. 25 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 26

Piette fails to demonstrate that the admission of this subset of the molestation

evidence affected the case, we need not consider whether the evidence was properly

admitted under Rules 404(b) or 414.

***

The molestation evidence concerning Piette’s daughters was properly admitted

as res gestae, and any error in admitting the remaining molestation evidence

involving the Springfield girl was harmless. The district court’s conclusory Rule 403

assessment does not require reversal because, on this record, it was not an abuse of

discretion to find that the evidence’s probative value was not outweighed by its

prejudicial effect. See Lazcano-Villalobos, 175 F.3d at 846–47.

III.

Next, we consider Piette’s argument that the traveling-with-intent charge was

brought outside the statute of limitations because the enactments purporting to extend

the then-unexpired charging period had an impermissible retroactive effect. We

review the district court’s “interpretation and application” of statutes of limitations

de novo. Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015). We

likewise review the retroactivity of a statute de novo. See Valdez-Sanchez v.

Gonzales, 485 F.3d 1084, 1088 (10th Cir. 2007). For the following reasons, we

reject Piette’s argument and affirm his traveling-with-intent conviction.

The general federal statute of limitations for noncapital offenses is five years.

See 18 U.S.C. § 3282(a). But Congress has made several modifications to that

charging period for sexual offenses against minors. As a result, the statutes of

26 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 27

limitations that apply to Piette’s traveling-with-intent charge have gone through a

series of changes in the past few decades, as summarized below.

Act Year Code Charging Period Victims of Child Abuse Act 1990 § 3509(k) Until the child turned twenty- five. Violent Crime Control and Law 1994 § 3283 Until the child turned twenty- Enforcement Act five (recodification). Prosecutorial Remedies and Other 2003 § 3283 The life of the child. Tools to end the Exploitation of Children Today (PROTECT) Act Violence Against Women and 2006 § 3283 The life of the child or ten Department of Justice years after the offense Reauthorization Act (whichever is longer). Adam Walsh Child Protection and 2006 § 3299 Any time. Safety Act

Today, both §§ 3283 and 3299 cover Piette’s traveling-with-intent charge.

Piette argues that the statute of limitations on that charge began to run, at the latest,

on May 14, 2000, when McGinnis turned sixteen. See id. § 2243(a) (criminalizing

sexual acts with minors between twelve and sixteen by persons at least four years

older). At that point, the statute of limitations in effect—§ 3283 (1994)—would

expire on McGinnis’s twenty-fifth birthday, which was May 14, 2009. Piette was

ultimately charged in December 2017. Before the limitations period expired,

however, Congress made the 2003 and 2006 changes outlined above, which would

render Piette’s indictment timely if applied to him.

The issue is whether the new statutes of limitations validly extended the

charging period for Piette’s pre-enactment conduct—that is, whether they apply 27 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 28

retroactively. Piette argues that the test outlined by the Supreme Court in Landgraf

v. USI Film Products, 511 U.S. 244, 280 (1994), and Fernandez-Vargas v. Gonzales,

548 U.S. 30, 37 (2006), for assessing a statute’s retroactivity requires reversal and

renders his indictment untimely. Piette is not the first defendant to encounter this

problem or make this argument. Several courts have discussed this exact question

either on the merits or in the context of an ineffective assistance of counsel claim.

See Weingarten v. United States, 865 F.3d 48, 54–58 (2d Cir. 2017) (ineffective

assistance); United States v. Miller, 911 F.3d 638, 642–46 (1st Cir. 2018) (ineffective

assistance); United States v. Nader, 425 F. Supp. 3d 619, 624–32 (E.D. Va. 2019)

(merits); United States v. Maxwell, 534 F. Supp. 3d 299, 314–16 (S.D.N.Y. 2021)

(merits). These cases inform our determination whether the relevant statutes of

limitations apply retroactively, which appears to be a question of first impression in

this circuit.

At the outset, it is important to clarify the Landgraf framework that guides our

review. Different circuits divide on the proper number of steps and their contents,

but we tend to view Landgraf as a two-step process. See Dobbs v. Anthem Blue

Cross & Blue Shield, 600 F.3d 1275, 1282–83 (10th Cir. 2010). First, we ask

“whether Congress has expressly prescribed the proper reach” of the statute. Id. at

1282. If so, we follow Congress’s lead. If not, we proceed to the second step, asking

“whether applying the statute to the events at issue would have retroactive effects.”

Id. The Supreme Court instructs that “[s]tatutes are disfavored as retroactive when

their application ‘would impair rights a party possessed when he acted, increase a

28 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 29

party’s liability for past conduct, or impose new duties with respect to transactions

already completed.’” Fernandez-Vargas, 548 U.S. at 37 (quoting Landgraf, 511 U.S.

at 280). If we find a retroactive effect, “our traditional presumption teaches that it

does not govern absent clear congressional intent favoring such a result.” Landgraf,

511 U.S. at 280.

Before proceeding, we note that Piette is not making an Ex Post Facto Clause

argument. See U.S. Const. art. I, § 3, cl. 9. Several circuits have analyzed this exact

issue under that rubric, as opposed to Landgraf retroactivity, and declined to find a

violation of the Ex Post Facto Clause where the amended statute of limitations

merely extended, as opposed to revived, a charging period. See United States v.

Chief, 438 F.3d 920, 924–25 (9th Cir. 2006); United States v. Jeffries, 405 F.3d 682,

685 (8th Cir. 2005).

At Landgraf’s first step, we look for an express indication of the statutes’

temporal reach. The argument on the government’s side is that the statutes’

introductory clauses—“[n]o statute of limitations that would otherwise preclude,” for

§ 3283, and “[n]otwithstanding any other law,” for § 3299—supply a “clear statement

as to . . . retroactive effect.” Weingarten, 865 F.3d at 55. A district court accepting

this argument with respect to § 3283 reasoned that “[t]he statute’s plain language

unambiguously requires that it apply to prosecutions for offenses committed before

the date of enactment . . . [because] it prevents the application of any statute of

limitations that would otherwise apply to past conduct.” Maxwell, 534 F. Supp. 3d at

29 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 30

315. The same reasoning would apply to § 3299’s “[n]otwithstanding any other law”

language, which casts an even wider net.

The counterargument is that this introductory language refers not to

retrospective application, but only to 18 U.S.C. § 3282(a), the general federal statute

of limitations. On this reading, the statutes are merely supplanting the typical five-

year charging period. The First Circuit has observed that when this introductory

language was first deployed in § 3283 in 1990, “the only existing limitations period

to which the language could have referred was the default limit set forth in section

3282.” Miller, 911 F.3d at 644. Moreover, other statutes with the same kind of

introductory language contain explicit retroactivity provisions, so the government’s

interpretation would render them redundant.

Piette’s position points to the “express” requirement in Landgraf’s first step

and argues that it creates a high bar §§ 3283 and 3299 cannot meet. See Nader, 425

F. Supp. 3d at 626 (referencing “the demanding standard for express prescription” in

the Fourth Circuit, which requires “language unequivocally delineating the time

period to which [statutes] apply”). It is indisputable that these statutes say nothing

express about retroactive application, so Piette has the stronger argument on this

point. Although the introductory words of both statutes are not inconsistent with the

government’s reading, they hardly constitute Congress expressly announcing a

retroactive effect. A provision literally stating that a statute applies retroactively is

more so the kind of provision that Landgraf contemplates. Congress can enact, and

30 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 31

has enacted, such provisions in the past. But it did not do so in either § 3283 or

§ 3299. We proceed to Landgraf’s second step.

At this step, we look for an impermissible retroactive effect, defined as an

effect that “would impair rights a party possessed when he acted, increase a party’s

liability for past conduct, or impose new duties with respect to transactions already

completed.” Landgraf, 511 U.S. at 280. If we find such an effect, we presume the

statute does not apply retroactively unless there is “clear congressional intent

favoring such a result.” Id.

On Piette’s side, the Second Circuit has acknowledged “colorable arguments”

that extending a live charging period would increase a defendant’s liability for past

conduct under Landgraf. See Weingarten, 865 F.3d at 57. But the court also

acknowledged that the “vast weight of retroactivity decisions” support a distinction

“between revoking a vested statute of limitations defense and extending a filing

period for live claims.” Id. The former would be a problem. The latter would not.

The First Circuit notes that the question’s difficulty is compounded by the criminal

context. See Miller, 911 F.3d at 645. After all, the Supreme Court has held that

statutes of limitations should be “liberally interpreted in favor of repose.” Toussie v.

United States, 397 U.S. 112, 115 (1970). Accordingly, Piette relies heavily on

United States v. Gentile, which held that a different statute of limitations extension

was impermissibly retroactive under Landgraf because of that very principle. 235 F.

Supp. 3d 649, 654 (D.N.J. 2017). But other courts have distinguished Gentile,

concluding that “the case law strongly supports the proposition that the distinction

31 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 32

between applying a statute that extends or eliminates a statute of limitations period to

claims that were expired at the time of its enactment, and applying it to claims that

were unexpired at the time of its enactment, is applicable to both civil and criminal

statutes of limitations.” Nader, 425 F. Supp. 3d at 630.

We agree. In 2003 and 2006, when these statutes of limitations were enacted,

the original statute of limitations had not yet expired and Piette remained subject to

prosecution for his past conduct insofar as he was susceptible to being charged for it.

By extending the unexpired statute of limitations, Congress did not increase Piette’s

exposure to prosecution retroactively. It did not raise the penalty for the charged

offense. It did not redefine the offense to make it easier to establish. It did not

expose Piette to criminal prosecution anew. It merely altered the ongoing charging

period for the conduct that had already exposed him to criminal prosecution. Piette

was subject to indictment in 2002, before the statutes of limitations were extended,

and he remained subject to indictment in 2007, once the changes were made. A dead

charge was not resurrected, and the underlying nature of Piette’s potential criminal

liability remained the same. Ex Post Facto Clause cases echo both this conclusion

and the import of this distinction in the broader retroactivity context. See, e.g.,

Jeffries, 405 F.3d at 685. Piette’s argument that he had the “statutory right,” Aplt.

Br. at 51 (quoting Gentile, 235 F. Supp. 3d at 654), to be free from prosecution after

the original statute of limitations would have expired is misguided. Rather, it is

Congress that had the right to modify a pending statute of limitations. Doing so does

not violate retroactivity principles with respect to unexpired charging periods. We

32 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 33

conclude that neither statute of limitations had an impermissible retroactive effect

because the relevant charging period had not yet expired. Extending an unexpired

statute of limitations does not increase a defendant’s exposure to prosecution. As a

result, we need not consider Congressional intent. Landgraf is no basis for finding

Piette’s traveling-with-intent charge untimely, so we affirm the conviction.

IV.

Finally, we consider Piette’s argument that his kidnapping conviction should

be reversed. We agree and reverse Piette’s kidnapping conviction because the

district court plainly erred by misallocating the burden of proof in its jury

instructions and verdict form. We review the kidnapping jury instruction for plain

error because Piette failed to object to it below. See United States v. Antonio, 936

F.3d 1117, 1126 (10th Cir. 2019). To prevail on plain error review, Piette must show

that “(1) the district court erred, (2) the error was plain, (3) the error affected

substantial rights, and (4) the error seriously affected the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Muñoz, 812 F.3d 809, 813 (10th

Cir. 2016).

Our precedent clarifies how plain error analysis should be approached when a

jury instruction is under review. First, an instruction amounts to error where,

“considering the instructions as a whole, the jury has been misled.” United States v.

Duran, 133 F.3d 1324, 1330 (10th Cir. 1998). Second, an error is plain where it is

“clear or obvious.” Muñoz, 812 F.3d at 813 (quoting Morales-Fernandez v. INS, 418

F.3d 1116, 1124 (10th Cir. 2005)). Third, an instruction affects substantial rights if it

33 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 34

“concerns a principal element of the defense or an element of the crime.” Duran, 133

F.3d at 1330. Finally, “the fairness or integrity of a defendant’s trial is seriously

affected when the defendant has presented substantial evidence in support of an

affirmative defense which has been undermined by an erroneous instruction.” Id.

(internal quotation marks omitted).

A criminal defendant generally bears the burden of proof on affirmative

defenses, but Piette relies upon Supreme Court authority suggesting a consensus

around the proposition that when a defendant contests whether the statute of

limitations has run, the burden of proof on that issue shifts to the government. Piette

argues that the district court plainly erred by instructing the jury that he bore the

burden to prove that McGinnis was no longer held against her will at a certain date,

an argument that would have started the statute of limitations on the kidnapping

charge. To surmount the “extremely high hurdle” set by plain error review, United

States v. Walser, 275 F.3d 981, 988 (10th Cir. 2001), Piette cites to United States v.

Duran, a case involving the entrapment defense, which is subject to a similar burden-

shifting treatment. In Duran, we found reversible plain error under nearly identical

procedural circumstances. 133 F.3d at 1329–34.

Starting with Supreme Court precedent, in Musacchio v. United States the

Court held that the general federal criminal statute of limitations, 18 U.S.C.

§ 3282(a), cannot be raised on appeal unless it was argued below. 577 U.S. 237, 248

(2016). The Court explained:

34 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 35

[A] statute-of-limitations defense becomes part of a case only if the defendant puts the defense in issue. When a defendant presses a limitations defense, the Government then bears the burden of establishing compliance with the statute of limitations by presenting evidence that the crime was committed within the limitations period or by establishing an exception to the limitations period.

Id. (emphasis added) (citing United States v. Cook, 17 Wall. 168, 179 (1872)). We

have previously relied upon this aspect of Musacchio. See United States v. DeLia,

906 F.3d 1212, 1217 (10th Cir. 2018) (when defendant “affirmatively and timely”

raises statute-of-limitations defense, burden shifts to government to establish

compliance). Other circuits agree. See United States v. Wilson, 118 F.3d 228, 236

(4th Cir. 1997); United States v. Ferris, 807 F.2d 269, 272 (1st Cir. 1986).

The government relies upon Smith v. United States, 568 U.S. 106 (2013),

which held that assigning the burden of proving withdrawal from a conspiracy to a

defendant does not violate the Due Process Clause, to argue that it does not need to

prove the nonexistence of affirmative defenses. The district court also cited Smith in

a pretrial order on this issue. See R. Vol. I at 152 (“Commission of a federal crime

within the statute-of-limitations period is not an element of the offense, and it is up to

the defendant to raise the limitations defense.”). But, as Piette points out, the Court

in Smith expressly stated “that the Government must prove the time of the conspiracy

offense if a statute-of-limitations defense is raised.” 568 U.S. at 113. Smith is

consistent with both Musacchio and Piette’s theory of plain error.

It is therefore settled that if a defendant invokes the statute of limitations as a

defense, the burden shifts to the government to establish the timing of the offense

35 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 36

beyond a reasonable doubt. Here, by instructing the jury to the contrary, the district

court misled the jury and committed plain error. Significant daylight divides the

jury’s finding that Piette failed to show, by a preponderance of the evidence, that

McGinnis was no longer held against her will at any point between 1997 and 2016,

from the hypothetical finding Piette requests, and which we hold the Constitution

requires: that the government proved, beyond a reasonable doubt, that McGinnis was

continuously held against her will long enough to avoid any statute of limitations

problem.

Turning to the remaining elements of plain error review, we observed in Duran

that a jury instruction affects a defendant’s substantial rights where it involves a

“principal element[]” of a defense. 133 F.3d at 1333. Here, Piette predicated his

entire defense to the kidnapping charge upon McGinnis’s consent. Shifting the

burden of proof to the government was a crucial aspect of the defense’s efficacy.

Also, the district court seemed to understand that whether McGinnis consented

affected the viability of the kidnapping charge on the very statute of limitations

grounds urged by Piette on appeal. See R. Vol. I at 372 (“This will aid the court in

making a separate legal determination in regard to this case.”). The district court’s

plain error regarding the burden of proof affected Piette’s substantial rights because it

involved a principal element of Piette’s principal defense. See Duran, 133 F.3d at

1333.

Finally, we held in Duran that “[i]n light of the revered status of the beyond-a-

reasonable-doubt standard in our criminal jurisprudence, a jury instruction that

36 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 37

allows a conviction where one important element may not have been found against

the defendant by such a standard cannot be overlooked.” Id. at 1334. That is exactly

what happened here. The timing issue created by Piette’s defense was not resolved

beyond a reasonable doubt, as the Constitution requires. The district court plainly

erred, so Piette’s kidnapping conviction must be reversed.5

V.

Last, because we affirm the traveling-with-intent conviction, we reach and

reject Piette’s constitutional challenge to his sentence for that conviction. Piette

argues that, even if any of his convictions are not overturned, his sentence should be

reversed because he was denied his Sixth Amendment right to represent himself at

sentencing. A defendant seeking to represent himself must (1) “clearly and

unequivocally” inform the court; (2) do so “timely and not for the purpose of delay”;

(3) assure the court that he is waiving the right to counsel “knowingly and

intelligently”; and (4) be “able and willing to abide by rules of procedure and

courtroom protocol.” United States v. Simpson, 845 F.3d 1039, 1046 (10th Cir.

2017) (quoting United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir. 2006)). We

5 In the closing moments of his rebuttal at oral argument, Piette’s counsel suggested that “the fundamental nature of the burden of proof” requires reversing Piette’s traveling-with-intent conviction because of the error that requires overturning his kidnapping conviction. Oral Arg. at 32:28–32:37. We do not consider issues that are first presented at oral argument. See Denver Homeless Out Loud v. Denver, 32 F.4th 1259, 1269 n.9 (10th Cir. 2022). 37 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 38

review the district court’s failure to allow Piette to represent himself at sentencing for

abuse of discretion.6

Piette argues that the district court should have conducted a Faretta hearing

and allowed him to represent himself at sentencing. See Faretta v. California, 422

U.S. 806, 834–36 (1975); see also United States v. Hansen, 929 F.3d 1238, 1249

(10th Cir. 2019) (district courts often assess whether waivers of counsel are made

knowingly and intelligently by conducting Faretta hearings). The government

responds that Piette failed to make a clear and unequivocal request to proceed pro se

because of his “prolific and varied correspondence with the district court,” which

alternated between praising and lambasting his attorney, Warren Gotcher. Aple. Br.

at 46. The government also observes that, at sentencing, Piette agreed to Gotcher

representing him through filing an appeal, and that Piette spoke extensively on his

own behalf. We agree with the government. Piette’s theory fails on the clear-and-

unequivocal prong for two principal reasons, and therefore the district court did not

abuse its discretion.

6 Both parties misstate the standard of review as de novo, which ignores the distinction we draw between requests for self-representation made before trial, reviewed de novo, and requests made after trial, reviewed for abuse of discretion. See United States v. Beers, 189 F.3d 1297, 1303 (10th Cir. 1999); see also United States v. Estrada, 25 F. App’x 814, 819–20 (10th Cir. 2002) (unpublished). Piette focuses on demands for counsel’s withdrawal made in November 2019 and renewed at sentencing in February 2020. The jury reached its verdict on June 6, 2019, ending the trial months before Piette’s first supposed request to proceed pro se. Because any invocation of the right to self-representation would have occurred post-trial, we review for abuse of discretion. 38 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 39

First, it is neither clear nor unequivocal that Piette ever sought to represent

himself—as opposed to merely requesting to withdraw Gotcher and receive new

appointed counsel. Only the former endeavor would implicate Piette’s constitutional

right to self-representation. On appeal, Piette argues that his November 2019 letter

did not request a replacement attorney, so we should view it as a request for self-

representation. But, by the same reasoning, the letter said nothing about self-

representation or proceeding pro se. Although it was preceded by a handwritten

pleading, Piette submitted numerous such documents while represented by counsel.

Similarly, Piette’s request for case materials could have been an attempt to recover

personal documents for his own records or for use by his next attorney, and not an

implicit request for self-representation. Moreover, Piette based his request on

Gotcher’s ineffective assistance and not on any constitutional right to self-

representation. In his response to Piette’s motion, Gotcher requested that Piette “be

appointed new counsel for appeal unless the defendant employs his own counsel,

which Counsel advised the defendant is his right.” R. Vol. I at 407. Gotcher, who

had contemporaneous personal access to Piette, did not even address the possibility

that Piette contemplated proceeding pro se at sentencing.

Second, even if Piette was attempting to invoke his right to self-representation

for purposes of sentencing, he verbally assented to the district court’s contrary

determination. Specifically, the district court asked Piette whether withdrawing

counsel post-sentencing was “acceptable.” R. Vol. II at 1108. Piette’s “[y]es, sir,

yes” response is as notable for what it says as what it does not say. Id. at 1109.

39 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 40

Between hundreds of pages of letters to the district court and a lengthy statement at

sentencing, Piette did not hesitate to share his perspective with the court. The

absence of any statement by Piette about self-representation undercuts his claim to

clarity on appeal. If Piette wanted to represent himself, he probably would have said

something to that effect, especially when given the opportunity.

The district court granted Piette’s motion without a Faretta hearing not

because the court thought it was allowing Piette to proceed pro se, but because it did

not view the circumstances as implicating Faretta. It reasonably thought Piette

wanted new counsel, not self-representation, and Piette said nothing to suggest

otherwise. We do not know the contents of the off-the-record conversation between

Piette and Gotcher alluded to in the hearing transcript, but if Piette wanted to proceed

pro se—a different request from just withdrawing Gotcher—it likely would have

come before the court. Piette may be correct that no magic words are required to

invoke the right to self-representation, but courts cannot read minds. The clear-and-

unequivocal requirement exists in part to “protect . . . the trial court” from a reversal

“dilemma” where a defendant granted counsel can assert a violation of the right to

proceed pro se, while a defendant granted self-representation can assert a violation of

the right to counsel. Simpson, 845 F.3d at 1046–47. Here, Piette clearly and

unequivocally requested only that his counsel be withdrawn, and the district court

granted that request. Because there was no clear and unequivocal request that

Gotcher withdraw so that Piette could represent himself at sentencing, and because

40 Appellate Case: 20-7008 Document: 010110726427 Date Filed: 08/18/2022 Page: 41

Piette assented to the district court’s contrary ruling, the court did not abuse its

discretion.

VI.

We AFFIRM Piette’s traveling-with-intent conviction, REVERSE Piette’s

kidnapping conviction, reject Piette’s constitutional attack on his sentencing, and

REMAND for further proceedings consistent with this opinion.